December 14, 2010

Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256)

https://www.beynensonlaw.com/case-law/matter-of-carothers-v-geico-indem-co-2010-ny-slip-op-09256/

Court
Appellate Division, Second Department
Decided
December 14, 2010
Citation
2010 NY Slip Op 09256 · 79 AD3d 864
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Contrasted (cf., but see) in 1 and followed in 11 later decisions (see Cited by)
Issues
Provider's prima facie case Trial and evidence
Legal questions
Claimant's prima facie case at trial (see the maps)
Cite as
Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 (2d Dept 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company. The Appellate Division, Second Department, affirmed the Appellate Term's reversal of the provider's judgment after a nonjury trial and dismissal of the complaint. The billing company did not create the records, and its employee was not shown to know the provider's record-keeping procedures. A recipient unfamiliar with the maker's practices may establish a foundation by showing incorporation into its own records or reliance in daily operations. Mere printing and mailing established neither. The inadmissible forms therefore could not establish the provider's prima facie case; its remaining contention was unpreserved.

Reported in New York Official Reports at Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256)

Matter of Carothers v GEICO Indem. Co.
2010 NY Slip Op 09256 [79 AD3d 864]
December 14, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 16, 2011


In the Matter of Andrew Carothers, M.D., P.C., Appellant,
v
GEICO Indemnity Company, Respondent.

—[*1] Smith Valliere PLLC, New York, N.Y. (Mark W. Smith and Timothy A. Valliere of counsel), for appellant.

Teresa M. Spina, Woodbury, N.Y. (P. Stephanie Estevez of counsel), for respondent.

In an action to recover no-fault medical payments under certain insurance contracts, the plaintiff appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, dated April 14, 2009, which reversed a judgment of the Civil Court of the City of New York, Kings County (Graham, J.), entered August 2, 2007, which, after a nonjury trial, awarded the plaintiff the principal sum of $4,463.17, and dismissed the complaint.

Ordered that the order dated April 14, 2009, is affirmed, with costs.

The testimony of an employee of the company that handled the plaintiff’s medical billing was insufficient to lay a foundation for the admission of the claim forms under the business records exception of the hearsay rule (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Such records were inadmissible because the billing company did not create the records and there was no showing that its employee was familiar with the particular record-keeping procedures of the plaintiff (see West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [2002]). Further, although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker’s business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations (see People v A & S DiSalvo Co., 284 AD2d 547, 548 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). Here, the billing company’s mere printing and mailing of the documents to the insurer did not establish that the documents were incorporated into its records or that it relied upon the records in its regular course of business (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494,495 [2007]). Since the subject documents were inadmissible, the plaintiff failed to establish its prima facie case, and the Appellate Term properly reversed the judgment in the plaintiff’s favor.

The plaintiff’s remaining contention is unpreserved for appellate review. Rivera, J.P., Dillon, Angiolillo and Austin, JJ., concur.

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